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2004 DIGILAW 607 (PNJ)

Sudarshan Tandon v. Pram Nath

2004-05-24

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This order shall dispose of two petitions i.e. C.R. Nos. 3777 and 3778 of 2003. Both the petitions have been filed by the tenant-petitioner No. 1 and her sub-tenant petitioner Nos. 2 and 3 under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity the Act) against the concurrent findings of facts recorded by both the Courts below holding that tenant-petitioner No. 1 Smt. Sudarshan Tandon has sublet the demised premises to tenant-petitioner Nos. 2 and 3 without any written permission from the landlord-respondent. It has been proved by cogent evidence that the demised premises were rented out to petitioner No. 1 for running a school who left India and has settled in USA in 1980. It is established that physical exclusive possession is with sub-tenant petitioner Nos. 2 and 3. The entire control of the demised premises has been given to respondent Nos. 2 and 3. Both the Courts below have rejected the contention of the tenant-petitioner that she is controlling the school through petitioner Nos. 2 and 3. The argument has also been rejected that petitioner No. 2 is running the school under the guidance supervision and on the terms dictated by petitioner No. 1. The document placed on record in the shape of account books Exs. R2 to R8 have not been accepted because these documents have been prepared after the institution of the proceedings and the evidence has been created in order to support the stand taken in the reply to the ejectment petition. It is appropriate to mention that the ejectment petition was filed on 3.2.1999. Some of the documents have been discarded on the ground that they are forged or self serving documents created for the purposes of supporting their case. Accordingly, both the Courts below have found that petitioner Nos. 2 and 3 have not been managing the school on the terms, guidance and ownership of tenant-petitioner No. 1. They have been managing the school independently which has been sub-let by petitioner No. 1 to petitioner Nos. 2 and 3 without the consent of the landlord. 2. Shri Puneet Jindal, learned counsel for the tenant-petitioner has argued that both the Courts below have committed grave error in law by their inability to distinguish between the constructive possession and physical possession. 2 and 3 without the consent of the landlord. 2. Shri Puneet Jindal, learned counsel for the tenant-petitioner has argued that both the Courts below have committed grave error in law by their inability to distinguish between the constructive possession and physical possession. According to the learned counsel constructive possession of the premises continues to be with the tenant-petitioner No. 1 whereas physical possession might have been with petitioner Nos. 2 and 3. Learned counsel has emphasized that once petitioner No. 1 is in a position to oust the petitioner Nos. 2 and 3 being armed with legal right then in law it must be held that tenant-petitioner No. 1 has full control of the demised premises and the petitioner cannot be ejected on that ground. In support of his submission, the learned counsel has placed reliance on para 6 of the judgment of the Supreme Court in the case of Jagan Nath v. Chancier Bhang, A.I.R. 1988 S.C. 1362. 3. Shri Ashok Gupta, learned counsel for the landlord-respondent has argued that once tenant-petitioner No. l has handed over exclusive physical possession of the demised premises to petitioner Nos. 2 and 3 then law permits raising of various inferences because the subletting is always created under mysterious circumstance. According to the learned counsel a valid inference would be that after the tenant-petitioner No. 1 has left for USA in 1980 without any control over the demised premises then it has to be assumed that there is sub letting by her to petitioner Nos. 2 and 3. Such an inference would be valid as has been repeatedly held by the Supreme Court. He has placed reliance on a judgment of the Supreme Court in the case of Nihal Chand Rameshwar Dass v. Vinod Rastogi, (1994)4 S.C.C. 325. 4. After hearing the learned counsel for the parties, I am of the considered view that these petitions are liable to be dismissed because the possession of the property is admittedly with petitioners Nos. 2 and 3 and they are under obligation to explain in what capacity they are continuing to be in possession. Their case that they are employees working under the guidance and supervision of petitioner No. 1 has not been accepted because the evidence produced by them is either self serving and forged or it is created after the filing of the petition to set up the aforementioned plea. Their case that they are employees working under the guidance and supervision of petitioner No. 1 has not been accepted because the evidence produced by them is either self serving and forged or it is created after the filing of the petition to set up the aforementioned plea. No explanation has been furnished by the tenant-petitioner No. 1 and petitioner Nos. 2 and 3 explaining the possession of petitioner Nos. 2 and 3. In these circumstances, the ratio of the judgment of the Supreme Court in the case of Nihal Chand (supra) would be fully applicable and it is safe to assume that there is sub letting of the premises by the tenant-petitioner No. 1 to petitioner Nos. 2 and 3. Such a transaction is always a clandestine arrangement between the tenant and the sub tenant. More often no direct evidence showing payment of rent or other arrangements is available. In such circumstances, a legitimate inference is permissible as has been observed by the Supreme Court in the case of Rajbir Kaur v. S. Chokesiri and Co., (1989)1 S.C.C. 19. In this regard, the observations of their Lordships read as under:- "If exclusive possession is established, and the version of the tenant as to the particulars and the incidents of the transaction is found unacceptable in the particular facts and circumstances of the case, as in the present case, it may not be impermissible for the court to draw an inference that the transaction was entered into with monetary consideration in mind. It is open to the respondent to rebut this. Such transactions of sub-letting in the guise of licences are in their very nature, clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence. It is not, unoften a matter for legitimate inference. The burden of making good a case of sub-letting and establishing facts and contentions which support the partys case is on the party who takes the risk of non-persuasion viz. the landlord. If at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. In the circumstances of the present case the landlord-appellants having been forced by the courts below to have established exclusive possession of the person inducted by the tenant-respondents of a part of the demised premises and the explanation of the transaction offered by the respondents having been found by the courts below to be unsatisfactory and unacceptable, it was not impermissible for the courts to draw an inference, having regard to the ordinary course of human conduct that the transaction must have been entered into for monetary considerations. There is no explanation forthcoming from the respondents appropriate to the situation as found. Moreover, the landlord-appellants specifically pleaded "sub-letting". The tenant-respondents, understood that pleadings as to imply all the incidents of sub-letting including the element of rent and specifically traversed that plea by denying the existence of consideration. Parlies went to trial with full knowledge of the ambit of the case of each other. In the circumstances the pleading would be required to be construed liberally." 5. I am further of the view that once the findings of facts recorded by the Courts below are based on evidence on record, this Court is not to embark upon re-appreciation of evidence and reach a conclusion different than the once recorded by the Courts below merely because such a view could be a possible view. This view has also been supported by a judgment of the supreme Court in Rajbir Kaurs case (supra). 6. The argument -raised by the learned counsel based on the judgment of the Supreme Court in the case of Jagan. Nath (supra) has not impressed me because in that case the stand was entirely different. The aforementioned judgment was rendered under Section 14(1)(b) of the Delhi Rent Control Act which may be different than Section 13(2) Act. Moreover in that case the possession was delivered by the father to the son who had constituted joint Hindu Family. Nath (supra) has not impressed me because in that case the stand was entirely different. The aforementioned judgment was rendered under Section 14(1)(b) of the Delhi Rent Control Act which may be different than Section 13(2) Act. Moreover in that case the possession was delivered by the father to the son who had constituted joint Hindu Family. Therefore, I have no hesitation in rejection the contention raised on behalf of the petitioner based on the judgment of the Supreme Court in Jagan Nath s case (supra).For the reasons stated above, this petition fails and the same is dismissed.